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Associated Musicians of Greater New York, Local 802, AFM v. League of American Theatres and Producers

October 25, 2006


The opinion of the court was delivered by: Kenneth M. Karas, District Judge


No longer under the bright lights of Broadway, the Elvis Presley inspired musical All Shook Up,finds itself where many successful Broadway shows end up: in federal court.*fn1

Petitioner Associated Musicians of Greater New York, Local 802, AFM ("The Union" or "Petitioner") brings this action seeking partial vacatur of the December 18, 2004 arbitration award in favor of Respondent The League of American Theatres and Producers, Inc. ("The League" or "Respondent"). For the reasons explained below, the petition to partially vacate the arbitration award is DENIED.

I. Background

A. The Parties and the Collective Bargaining Agreement

The Union is an unincorporated association that represents musicians employed by League members. (Verified Pet. to Vacate an Arbitration Award ¶¶ 2, 3 ("Pet.").) The League is a multi-employer association that coordinates the collective bargaining of its member Broadway theatres and producers. (Pet. ¶ 3.) On March 11, 2003, following a labor strike that temporarily shut down Broadway, the Parties signed a Memorandum of Agreement, expanding and modifying the collective bargaining agreement ("CBA") applicable for the time period underlying the events in dispute brought forth in this Petition. (Pet. ¶ 4, Ex. A.) One of the more contentious issues that the Parties negotiated, and the subject of this Petition, was the minimum number of musicians that League member theatres would be required to employ for each of their musical productions at particular theatres.*fn2 (Pet. ¶ 5.) To reach an agreement, the Parties compromised on two issues. First, they agreed to slightly reduce the minimum number of musicians and retain these minimums for ten years. (Pet. ¶ 6, Ex. A.) Second, the Parties agreed to revise the "Special Situations" section of the Agreement, which permits a member of the League to apply for an exception to the minimum number of musicians required under the CBA. (Pet. ¶ 7.)

To obtain an exception to the minimum musician requirement, a League member must demonstrate that there are legitimate artistic reasons why the production should be permitted to use fewer than the required number of musicians. An application for an exception is first reviewed by a Special Situations Committee ("Committee"), comprised of experts in the field of theatrical production, who are chosen in advance by the Parties. (Pet. ¶ 10, Ex. A at 11.)*fn3 Both Parties may present documentary evidence and call witnesses when they appear before the Committee. (Pet. ¶ 10.) The Committee is required under the Agreement to "decide the issue primarily on artistic considerations." (Pet. Ex. A at 12.) Specifically, the Committee is to consider four factors: "(I) the musical concepts expressed by the composer and/or orchestrator; (ii) whether the production is of a definable musical genre different from a traditional Broadway musical; (iii) the production concept expressed by the director and/or choreographer; and/or (iv) whether the production recreates a pre-existing size band or band's sound (on or offstage)." (Pet. Ex. A at 12.) After considering the Parties' presentations, the Committee must render "a written decision explaining in detail the basis for its conclusions" within forty-eight hours after the Parties have submitted their positions. (Pet. ¶ 10, Ex. A at 12.)

The CBA also provides an avenue by which either party can seek review of the Committee's decision. The CBA states that: "In the event that the Employer/Producer or the Union does not agree with the Committee's determination, either party may submit the matter to binding arbitration before an arbitrator selected pursuant to the Voluntary Labor Arbitration Rules of the American Arbitration Association." (Pet. ¶ 11, Ex. A at 11-12.) The CBA further states that, "[O]nce it has reached a decision, the Committee shall retain jurisdiction to consider any appropriate matters concerning, for example, either the implementation of its decision or any change in concept of the production at issue, which, inter alia, might lead to a reconsideration of its prior decision." (Pet. Ex. A at 12.)

B. All Shook Up

On June 8, 2004, the Union received a request from the producers of a new Broadway production entitled All Shook Up, seeking Special Situation status. All Shook Up was a musical based on the songs of Elvis Presley, and the producers of the show, in support of their request, stated that they sought "to create a sound for the show that emulates a typical early-Elvis-type 'band'; a sound that is not consistent with the traditional 'Broadway' sound."*fn4 (Pet. Ex. J at 5.) In keeping with this artistic approach, the producers sought to employ the services of a 15-person orchestra, as opposed to the required 19-person orchestra for the Marquis Theater, where the musical was scheduled to debut.*fn5 (Pet. Ex. E.) The Union denied the producers' request, and subsequently, the Parties convened the Committee on September 30, 2004 to consider whether Special Situation status was warranted. (Pet. ¶ 14.) The Committee heard witness testimony and reviewed evidence submitted by both sides. (Pet. Ex. J at 1-10.) In particular, the Committee heard the testimony of two witnesses from the production: Stephen Oremos, the Music Director and Arranger, and Michael Gibson, the Orchestrator. In support of their bid to obtain Special Situation status, they testified that the musical concept for the production was to present Elvis Presley's music with a "gospel overlay." (Pet. Ex. J at 5.)

After reviewing all of the evidence, the Committee denied the producers' request and issued an opinion, stating that:

The majority of the Committee had difficulty reconciling the stated desire of the orchestrator with respect to his views of the orchestration as requested and the written request of the producers, the oral testimony and the written rebuttal of the orchestrator in this case.

The majority opinion of the Committee found that the stated concept for this musical was not proven sufficiently to require a reduction in the minimum number from that which comprises a ...

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